JUDGMENT

Agarwal, J - This is an execution of decree appeal against the judgment and decree passed by the Civil Judge of Sultanpur upholding the order passed by the Munsif of that place. One Salig Ram obtained a decree against Sri Thakurji on 27th November 1934. He transferred the decree to the present appellant, Dwarka on 29th November 1934. Bisheshwar Ram and Ghazi Din had decrees against Salig Ram. On 30th November 1934, they applied for execution of those decrees by attachment of the decree obtained by Salig Ram. The decree obtained by Salig Ram against Sri Thakurji was attached on 21st December 1934. Then Bishrshwar Ram and Ghazi Din transferred their decrees to the respondent Abdul Shakur by means of two sale deeds one dated 13th January 1937, and another dated 20th May 1937. Dwarka applied for the execution of the decree on 20th December 1934. The execution case was consigned to records on 3rd August 1935. The original decree was modified in appeal on 12th October 1935. Dwarka again applied for execution of the decree on 27th May 1937. Abdul Shakur then preferred an objection under Section 47, Civil P.C., to the effect that the sale by Salig Ram in favour of Dwarka was fictitious. Dwarka pleaded that the objection was not maintainable under Section 47, Civil P.C., and Abdul Shakur being a transferee of Bisheahwar Ram and Ghazi Din was also denied. The learned Munsif framed the following five issues:

1. Is the application maintainable under Section 47, Civil P.C.?

2. Is the opposite party a transferee of the decree in question?

3. Is the transfer in favour of the opposite party fictitious and fraudulent?

4. Is the opposite party not entitled to execute the decree in question?

5. Is the objector a transferee from Bisheshwar Ram and Ghazi Din as alleged?

2. He held that the objection was maintainable under Section 47 and the sale in favour of Dwarka was fictitious and fraudulent. He also held that the sale deeds in favour of Abdul Shakur were proved. He allowed the objection of Abdul Shakur and rejected the execution application of Dwarka. Dwarka went in appeal to the District Judge and the Civil Judge to whom it was transferred dismissed the appeal. He has now come up in second appeal and it has been argued before me that the objection of Abdul Shakur was not maintainable under Section 47, Civil P.C. The learned Munsif relying on Mohini Mohan v. Surendra Chandra, A.I.R. 1916 Cal. 471 held that the objection was maintainable under Section 47, Civil P.C. The question is whether an attaching creditor of a decree is entitled to raise an objection that Dwarka the purchaser of the decree is not entitled to execute it. Reliance is placed on Clause (3) of Section 47, Civil P.C. It runs thus:

Where a question arises as to whether any person is or is not a representative of a party such question shall for the purposes of this section be determined by the Court.

3. Clause (1) of this section provides:

All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.

4. Here the question is whether Dwarka the purchaser of the decree is entitled to execute it. The question is between him and Abdul Shakur who has purchased the decrees of Bisheshwar Ram and Ghazi Din. It was held in the case cited by the Munsif Mohini Mohan v. Surendra Chandra (A.I.R. 1916 Cal. 471 that Sub-section (3) of Section 47 is independent of Sub-Section (1) and therefore the question as to whether one or other person is a representative of a party comes within Section 47. This case was expressly dissented from in Khan Mahomed v. Chellaram, A.I.R. 1918 Sind. 63. In that case it was held that Section 47, Civil P.C., does not cover questions between a party and that party's representative that is the decree-holder and his transferee. The Bombay High Court in Venubai Gura